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Commonwealth v. Nelson

Appeals Court of Massachusetts, Middlesex

June 5, 2017

COMMONWEALTH
v.
RICHARD S. NELSON.

          Heard: April 10, 2017.

         Complaint received and sworn to in the Woburn Division of the District Court Department on February 27, 2013.

         The case was tried before Stacey Fortes-White, J.

          Robert L. Sheketoff for the defendant.

          Kristen M. Hughes, Assistant District Attorney, for the Commonwealth.

          Present: Kafker, C.J., Milkey, & Desmond, JJ.

          KAFKER, C.J.

         The defendant, Richard S. Nelson, was convicted of operating a motor vehicle while under the influence of intoxicating liquor, third offense, G. L. c. 90, § 24(1) (a.) (1), following a jury trial.[1] On appeal, the defendant claims that the trial judge erred by not excusing a juror[2] for cause who indicated that he was "a little" more likely to believe the testimony of a police officer than that of other witnesses, but agreed that he would be able to "keep an open mind, " "listen to all of the facts and evidence, " and "render a fair verdict." Although the defendant eventually exhausted all of his peremptory challenges, he did not use one of his then-remaining peremptory challenges on this juror or ask for additional peremptory challenges, and stated that he was content with the jury on which the juror sat. We affirm, concluding that the judge did not abuse her discretion. We also provide some additional guidance regarding the follow-up questioning of the challenged juror.

         Background.

         At the beginning of jury empanelment, the judge reminded the parties that they each had two peremptory challenges[3] and needed to voice their objections to any jurors before the jury was sworn. The judge then directed a series of questions to the venire to probe their ability to be impartial. The judge asked whether any juror would be "more inclined to believe the testimony of a police officer over someone who is not a police officer solely because that individual is a police officer." Four jurors, including juror number (no.) fourteen, raised their hands.[4] During the questioning of juror no. fourteen, the judge asked whether he would "give greater weight to the testimony of a police officer." Juror no. fourteen responded that he would, "[b]y a little." The judge then interjected, "[W]hat we're trying to get here is a fair and impartial jury, sir. So we want to make sure that you have the ability to keep an open mind and listen, " to which juror no. fourteen responded, "Of course." The judge then asked, "[A]re you saying that because someone's a police officer you would be unable to do that?" Juror no. fourteen stated, "No, but I feel like police officers have power, so you've got to give at least 51 percent that they might be telling -- they're probably telling the truth. . . . Not 100 [percent], not even close." Juror no. fourteen further explained that this was "without knowing anything about the case." The judge then asked juror no. fourteen whether he would "be able to listen to all of the facts and evidence in the case before [he would] be able to render a fair verdict." Juror no. fourteen responded, "Right." The judge further confirmed, "[Y]ou'd be able to do that, " to which juror no. fourteen responded, "I think so. Yes." Based on this exchange, the judge found that juror no. fourteen could be fair and impartial and seated him on the jury.

         After several jurors had been seated, the judge asked the parties whether they wished to challenge any juror for cause. Defense counsel challenged juror no. fourteen, pointing to his "inclination ... to believe a police officer 51 percent." The judge stated that she was "satisfied with [juror no. fourteen's] response, " and declined to excuse him for cause. Defense counsel did not challenge any other jurors for cause.

         After seven jurors had been seated, the judge asked whether either side wished to exercise any peremptory challenges. Defense counsel exercised a peremptory challenge to juror no. two, who indicated that she had testified as a witness in a domestic violence case. After juror no. two was replaced, defense counsel exercised another peremptory challenge on juror no. eleven, who had not indicated any responses to the judge's questions and was not examined individually. When the jury box again was full, the judge asked whether both sides were content with the jury, and defense counsel responded, "[Y]es."

         Discussion.

         The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights guarantee the right of a criminal defendant to a trial by an impartial jury. Commonwealthv.Andrade, 468 Mass. 543, 547 (2014). "A trial judge is accorded considerable discretion in the jury selection process and [her] finding that a juror stands indifferent will not be disturbed except where juror prejudice is manifest." Commonwealthv.Clark, 446 Mass. 620, 629-630 (2006). Reversal is warranted, however, "where a 'judge refuses to excuse any juror who should be excused for cause, and as a result the defendant exhausts all peremptory challenges and is forced to accept a juror whom he otherwise would properly have challenged.'" Commonwealthv.Leahy, 445 Mass. 481, 497 (2005), quoting ...


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